Defendant appeals from his convictions on four counts of first-degree
sexual abuse and one count each of first-degree attempted rape, (1) first-degree sodomy, and
second-degree sexual abuse, each offense involving the same victim. Defendant asserts
that the trial court erred in denying his motions for judgment of acquittal on the ground
that the evidence at trial was insufficient to support a finding that the victim was
"mentally defective" and, thus, incapable of consenting to the sexual conduct underlying
the crimes for which defendant was convicted. Defendant also contends that the trial
court erred in instructing the jury that it should consider the facts and circumstances
surrounding the victim's conduct in determining whether she was incapable of consent by
reason of mental defect. We affirm.

Because defendant was convicted, we view the evidence in the light most
favorable to the state. State v. Tucker, 315 Or 321, 325, 845 P2d 904 (1993). At the time
of the offenses, the victim was 19 years old, but she had an IQ of only 40 to 47, and her
reading and math skills were at a first grade level. On March 10, 2000, the victim spent
the night with her friend, Marcie Sichting. The victim slept on the floor of the bedroom,
and Sichting and defendant--who was Sichting's boyfriend--slept in a bed in the same
room. During the night, the victim awoke to find defendant inserting his finger into her
vagina and touching her vagina with his tongue. The victim testified that defendant
stopped touching her after Sichting told him to stop. Defendant then spent the rest of the
night in the living room, while Sichting and the victim slept in the bedroom. Defendant
testified that, before the March 10 incident, Sichting had told him that the victim wanted
to have sexual contact with him. However, the victim testified that she had not told
anyone, including defendant, that she wanted him to touch her sexually.

On March 19, the victim again spent the night at Sichting's and defendant's
home. On that occasion, the victim and Sichting slept in Sichting's bed, and defendant
slept on a chair in the living room. During the night, the victim was awakened by
defendant "bit[ing]" her breasts. At some point, defendant also touched the victim's
breasts with his hand. The victim told defendant to stop but, once more, he did not stop
until Sichting told him to.

Later that evening, defendant again came into the bedroom and sat on the
bed near the victim. Defendant removed the victim's pants while she slept. While he was
touching her breasts and her vagina, the victim awoke. Defendant also touched the
victim's thigh with his penis. The victim believed that defendant tried to put his penis
inside of her vagina, "but * * * guess[ed] it didn't work." The victim told defendant to
stop, but, again, he stopped only after Sichting told him to.

In connection with the March 10 and March 19 episodes, defendant was
charged with six counts of first-degree sexual abuse, ORS 163.427, (2) two counts of first-degree sodomy, ORS 163.405, (3) two counts of first-degree rape, ORS 163.375, (4) and two
counts of second-degree sexual abuse, ORS 163.425. (5) Except for second-degree sexual
abuse, each of the charged offenses includes as an element the requirement that the victim
must have been incapable of consenting to the sexual conduct by reason of mental defect,
mental incapacitation, or physical helplessness, ORS 163.375(1); ORS 163.405(1), or,
phrased slightly differently, by reason of being mentally defective, mentally incapacitated,
or physically helpless. ORS 163.427(1). With respect to those offenses, the indictment
alleged that the victim was incapable of consent by reason of a "mental defect" or being
"mentally defective."

At trial, the prosecutor asked the victim several questions relating to her
understanding of sex:

"Q: What--what do you think sex is?

"A: (no response.)

"Q: Do you know what it is?

"A: (no response.)

"Q: Do you not know what it is, or do you not know how to tell me
what it is?

"A: I don't know how to say it.

"Q: You don't know how to say it?

"A: Nope.

"Q: What--what do you think that it is?

"A: Sex.

"Q: Sex is sex? What kind of things can happen when people have
sex?

"A: They can get pregnant.

"Q: And who can get pregnant?

"A: Girls.

"Q: What if a girl doesn't want to get pregnant?

"A: Um she can have--(not understandable) you call it.

"Q: Is there something that you can think of that a girl can do if she
doesn't want to be pregnant?

"A: If I can just think a minute."

On cross-examination, defendant's counsel asked the victim several
questions pertaining to her knowledge and understanding of sex:

"Q: * * * in your opinion, it's what you believe--do you believe you
know about sex?

"A: Yes.

"Q: Do you believe that you know how a man and a woman have
sex together?

"A: Yes.

"Q: Okay. You know when a man and a woman have sex together,
that a man puts his penis inside the vagina?

"A: Yes.

"Q: And you know that when that happens that they can--that the
woman can have a baby after that?

"A: Yes.

"Q: And you know that it's good and proper to do that when--when
the two people consent and they want to have a relationship together?

"A: Un huh.

"Q: And it might not be so good for that to happen when somebody
doesn't want to do it, one of the--one party or the other doesn't want to do
it?"

"A: Yes.

"Q: And have you ever heard of AIDS?

"A: Yes.

"Q: And do you know that a person could get AIDS from having
sex?

"A: Yes."

After the state rested, defendant moved for judgments of acquittal on all
counts in which the state alleged that the victim was incapable of consenting to the sexual
conduct because she suffered from a mental defect or was mentally defective. Defendant
argued that the victim was not mentally defective because she "understood about the
mechanics of sex." On a ground unrelated to the mental defect argument, the court
granted defendant's motion for acquittal on one of the sodomy counts, but it denied the
motion to acquit with respect to the remaining charges. In doing so, the court reasoned
that, "there's something more than understanding the act itself under this statute. * * *
There's such [a] thing as understanding the consequences of the act."

At the conclusion of the evidence and arguments, the trial court instructed
the jury that being "mentally defective" means that "[a] person suffers from a mental
disease or defect that renders the person incapable of appraising the nature of his or her
conduct." During deliberations, the jury inquired about the foregoing instruction. In
response, the court gave the following supplemental instruction:

"In deciding whether [the victim] suffers from a mental defect that
renders her incapable of appraising the nature of her conduct, you should
consider [the victim's] understanding of the sexual acts and of the
consequences of the sexual acts by considering all the surrounding facts and
circumstances in which the sexual acts occurred."

Defendant's attorney objected to the supplemental instruction on the ground that the
victim's understanding of the consequences of the sexual conduct was not relevant to her
capability to consent to it. The court declined to reinstruct the jury and, as noted,
defendant was convicted on four counts of first-degree sexual abuse, the single remaining
first-degree sodomy count, and one count each of first-degree attempted rape and second-degree sexual abuse.

The parties' disagreement as to the proper application of the "mental defect"
standard in ORS 163.305(3) poses a problem of statutory construction. When interpreting
a statute, we attempt to discern the intent of the legislature by using the methodology set
out in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).
In considering statutory text, we give words of common usage their "plain, natural, and
ordinary meaning." Id. at 611.

ORS 163.315 provides, in part:

"(1) A person is considered incapable of consenting to a sexual act if
the person is:

" * * * * *

"(b) Mentally defective[.]"

Being "mentally defective" means that "a person suffers from a mental disease or defect
that renders the person incapable of appraising the nature of the conduct of the person."
ORS 163.305(3). Defendant concedes that there was sufficient evidence to prove that the
victim suffered from a mental defect. However, he contends that there was no evidence
that she was "incapable of appraising the nature of" her conduct as a result of that disease
or defect.

The parties do not clearly identify the core of their disagreement as to the
meaning of that statutory phrase. Although they focus at various points on the words
"incapable" and "appraising," those words do not appear to lie at the heart of the problem.
They have fairly straightforward ordinary meanings within the present context. As
pertinent here, "incapable" means "not able or fit for the doing or performance: * * * <~
of understanding the matter>." Webster's Third New Int'l Dictionary, 1141 (unabridged
ed 1993). "Appraise," the verb root of the gerund "appraising," means "to judge and
analyze the worth, significance or status of." Id. at 105. "Appraising" thus involves an
evaluative function. However, the scope of that function necessarily depends on the
object to which it refers, in this case, the word "nature."

Thus, it is the word "nature" whose meaning is most problematic, because,
of all the words in the statutory definition of "mentally defective," its meaning is the least
susceptible to precise articulation. As pertinent here, "nature" is defined as "the essential
character or constitution of something <the ~ of the controversy> <inquire into the ~ of
heredity * * * >; esp : the essence or ultimate form of something." Id. at 1507. The
dimensions of an "essential character" could be either relatively broad or more narrow,
depending on the frame of reference. For example, consistent with the state's view, the
"essential character" of conduct plausibly could encompass the social or other
nonphysical aspects of the sexual conduct that occurred. Alternatively--as defendant
asserts--it could more narrowly refer to the purely physical aspects of the conduct.
Neither meaning is necessarily more or less plausible than the other from a textual
standpoint.

The context of ORS 163.305(3) also is relevant to our inquiry. PGE, 317
Or at 611. As respects each of the offenses at issue, the victim's incapability to consent
alternatively could arise from mental incapacity or physical helplessness. See ORS
163.375(1)(d), 163.405(1)(d), 163.427(1)(a)(C). Those terms also are defined in ORS
163.305, which provides, in part:

"(4) 'Mentally incapacitated' means that a person is rendered
incapable of appraising or controlling the conduct of the person at the time
of the alleged offense because of the influence of a controlled or other
intoxicating substance administered to the person without the consent of the
person or because of any other act committed upon the person without the
consent of the person.

"(5) 'Physically helpless' means that a person is unconscious or for
any other reason is physically unable to communicate unwillingness to an
act."

The state argues that, if defendant's construction were to prevail, protection
would be given only to persons so intellectually disabled that they are not even conscious
that something is happening to them physically. According to the state, that construction
would make the term "mentally defective" redundant, because such persons also would be
"mentally incapacitated" or "physically helpless." The state asserts that, because we
presume that the legislature did not intend to enact redundant statutory alternatives,
FOPPO v. Washington County, 142 Or App 252, 259, 920 P2d 1141, rev den 324 Or 394
(1996), we cannot adopt defendant's interpretation.

We are not persuaded that defendant's reading of ORS 163.305(3)
necessarily renders it superfluous in light of ORS 163.305(4) and (5). ORS 163.305(4)
addresses persons who are incapable of appraising their conduct due to the administration
of a controlled or intoxicating substance or due to some other act committed upon the
person; the resulting mental incapacity thus is caused by an extrinsic agent or event and,
typically, is temporary. By contrast, even assuming that ORS 163.305(3) relates only to
the mental incapacity to appraise the physical or mechanical nature of sexual conduct, the
term "mentally defective" indicates that the resulting incapacity is both intrinsic and,
typically, permanent.

Similarly, ORS 163.305(5) addresses persons who simply are physically
unable to communicate unwillingness to an act, such as by reason of unconsciousness or
paralysis, whether temporary or permanent. Again by contrast, and again assuming that
ORS 163.305(3) relates only to the incapacity to appraise the physical or mechanical
nature of sexual conduct, ORS 163.305(3) addresses persons who, even if physically able
to communicate, lack the mental capacity to understand that they can or should do so. In
short, the state's contextual redundancy argument fails and, therefore, does not foreclose
defendant's interpretation of the statute.

In the end, both parties offer plausible interpretations of the word "nature,"
one broader and the other more narrow. Because neither we nor the parties have
identified any other helpful textual or contextual clues to its meaning, we conclude that it
is ambiguous. Accordingly, we turn to the legislative history of ORS 163.305(3). See
PGE, 317 Or at 611.

The statute was adopted as part of the 1971 Oregon Criminal Code. We
therefore consider the official commentary adopted by the Criminal Law Revision
Commission (Commentary) as part of its legislative history. State v. Chakerian, 325 Or
370, 378-79, 938 P2d 756 (1997). The Commentary states that the definition of the term
"mentally defective" was taken from the Michigan Revised Criminal Code. Commentary
to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and
Report (July 1970), § 104, 104-05. A more extensive discussion of the term is found in
the commentary to ORS 163.315:

"Although the terms which represent these mental states, 'mentally
defective,' 'mentally incapacitated' and 'physically helpless' are new to the
statutory phraseology of Oregon, the concepts which they describe are not
foreign to factors which the law has long recognized as affecting one's
capacity to consent.

"* * * * *

"[As pertinent to the phrase "mentally defective,] if this 'defect of
understanding' renders a person incapable of appraising the nature of his
conduct, he is in law unable to effectively consent.

"The mental capacity required by law to classify a person as 'feeble
minded' was discussed in the annotation at 93 ALR 918. Under the cases
there cited the rule for feeble minded persons was either the lack of mental
capacity to know the right or wrong of the sexual conduct, State v. Haner,
186 Iowa 1259, 173 NW 225 (1919), or so defective as to lack power to
give or withhold consent, Lee v. State, 43 Tex Crim Rep 285, 64 SW 1047
(1901). The rule stated in the Haner decision closely approximates the rule
stated in this draft, whereas the Lee rule would in fact abolish the legal
conclusion of lack of consent of a mental defective by requiring that no
power to consent be present. Such a rule makes the statute superfluous."
Id. at § 105, 105-07 (emphasis added).

"[W]e * * * concede that the protection of the law is not restricted to cases
of complete or absolute imbecility, but includes as well those who, while
having some degree of intellectual power and some capacity for instruction
and improvement, are still so far below the normal in mental strength that
they can offer no effectual resistance to the approach of those who take
advantage of their weakness to have or attempt sexual intercourse with
them. This would, of course, include those who by reason of mental
inferiority are incapable of knowing or realizing the moral quality of their
act and are therefore also incapable of giving rational consent." Haner, 173
NW at 226 (emphasis added).

Although ORS 163.305(3) is not identical to the statute construed in Haner,
in defining the term "mentally defective" the Oregon Criminal Code Revision
Commission "closely" followed the reasoning of Haner. In doing so, the commission
necessarily intended, for purposes of ORS 163.305(3), that being capable of appraising
the nature of a person's conduct requires more than a mere understanding of the physical
aspects of the conduct. Instead, it includes an ability to contemplate and assess the "right
or wrong" and the "moral quality" of the conduct.

In light of that interpretation of ORS 163.305(3), evidence that the victim
understood the mechanics of sex did not establish as a matter of law that she was capable
of appraising the nature of her conduct and, thus, was not "mentally defective."
Therefore, the trial court's denial of defendant's motions for judgments of acquittal was
not in error.

In his second assignment of error, defendant asserts that the trial court erred
in instructing the jury that it "should consider [the victim's] understanding of the sexual
acts and of the consequences of the sexual acts by considering all the surrounding facts
and circumstances in which the sexual acts occurred." Reprising the theme of his first
assignment of error, defendant argues that the instruction improperly permitted the jury to
consider the "moral quality" of the victim's conduct and that "[b]asing a criminal statute's
application on community moral opinion * * * creates a dangerous and unconstitutional
diversion." We review the court's decision to give the instruction for errors of law. See
State v. Cartwright

The state first responds that at least part of defendant's current argument is
unpreserved. As the state correctly observes, at trial, defendant objected only that the
supplemental instruction improperly focused on "the consequences of the sexual acts."
Defendant did not suggest that the supplemental instruction violated any constitutional
provision. We agree with the state that defendant's constitutional argument is not
preserved. See State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000).

Moreover, in light of our disposition of his first assignment of error,
defendant's remaining argument does not require extended discussion. As we have
explained, the inquiry into whether the victim was incapable of appraising the nature of
the sexual conduct at issue was not confined to the victim's understanding of the
mechanics of that conduct. Accordingly, in instructing the jury regarding its assessment
of whether the victim was "incapable of appraising the nature of" her conduct, ORS
163.305(3), the trial court did not err in instructing it to consider the victim's
understanding of the consequences of the sexual acts by considering surrounding facts and circumstances.

Affirmed.

1. As a lesser-included offense of the indicted charge of first-degree rape.

"A person commits the crime of sexual abuse in the second degree
when that person subjects another person to sexual intercourse, deviate
sexual intercourse or, except as provided in ORS 163.412, penetration of
the vagina, anus or penis with any object other than the penis or mouth of
the actor and the victim does not consent thereto."

6. Defendant also contends that the trial court erred in denying the motions for
judgment of acquittal with respect to the sexual abuse and sodomy counts (counts 2, 3, 4,
5, and 7), because those charges did not involve genital sex. Because defendant did not
preserve that argument, we do not consider it on appeal. See State v. Wyatt, 331 Or 335,
343, 15 P3d 22 (2000). Additionally, at oral argument, defendant advanced what
appeared to be an additional ground for acquittal. Defendant's attorney noted that ORS
163.305(3) provides that a person is mentally defective if the person is "incapable of
appraising the nature of [the person's] conduct." Because the state's evidence showed that
the victim merely submitted to defendant's acts, defendant's attorney reasoned that the
state was required to prove--and failed to do so--that the victim was incapable of
appraising the nature of her own limited participation in defendant's conduct. Because
that argument also was not preserved, we do not consider it.

7. The Iowa statute provided that, "[i]f any person * * * have such carnal
knowledge of an idiot or female naturally of such imbecility of mind or weakness of body
as to prevent effectual resistance, he shall be punished." Iowa Code, § 4758 (1919).